United States v. Galicia

United States Court of Appeals
for the Fifth Circuit

No. 20-40200

United States of America,

Plaintiff—Appellee,

versus

Jose Luis Galicia,

Defendant—Appellant.

Appeal from the United States District Court
for Southern District of Texas
USDC No. 1:17-CR-589-1

Before Haynes, Higginson, and Oldham, Circuit Judges.
Haynes, Circuit Judge:
Jose Luis Galicia appeals his sentence. He argues that the district
court erred in applying a sentencing enhancement under U.S. Sentencing
Guidelines § 2D1.1(b)(12) for maintaining a premises to distribute drugs
because he stored drugs in his garage on an infrequent basis and only for brief
periods of time. Because we conclude that one of the primary uses for
Galicia’s premises was the distribution of drugs, we AFFIRM Galicia’s
sentence.
United States Court of Appeals
Fifth Circuit
FILED
December 28, 2020

Lyle W. Cayce
Clerk
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I. Background
Galicia’s co-conspirator, Gerardo Jimenez, was stopped by the U.S.
Border Patrol near the Rio Grande River. After the Border Patrol discovered
approximately 169 kilograms of marijuana in his vehicle, Jimenez was taken
into custody. Jimenez told agents that Galicia had agreed to pay him for
transporting the confiscated marijuana. He also admitted that he had
transported marijuana to Galicia’s residence on three other occasions, using
the same vehicle and method of operation.
Shortly after this interview, agents contacted Galicia, who agreed to
speak with them. Galicia admitted that the confiscated marijuana was
supposed to have been taken to his house, and that he had been working with
Jimenez for two-and-a-half years to transport drugs. Galicia described the
logistics of the drug-transporting operation as follows: Jimenez would
reverse his work truck into Galicia’s carport, two unidentified men would
offload the drugs, Galicia would cover the drugs with a blanket, and then
other unidentified individuals would call him to pick up the drugs. Over time,
different people and vehicles would come by to make pickups.
Galicia was then arrested. He consented to a search of his house. A
canine alerted the authorities to the positive odor of narcotics at two storage
sheds located in the back of Galicia’s residence. Two scales were found
inside the sheds. Galicia subsequently pleaded guilty to knowingly and
intentionally possessing with intent to distribute more than 100 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2.
Galicia’s Presentence Investigation Report (“PSR”) recommended a
sentencing enhancement under U.S. Sentencing Guidelines § 2D1.1(b)(12)
for utilizing his residence to store illicit narcotics during his involvement in a
criminal conspiracy. Galicia objected, arguing that the main lawful reason for
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the maintenance of the premises was to reside in it and that storage of
marijuana was simply a collateral use of the premises.
The district court disagreed with Galicia. The court expressly found
that one of the primary purposes for Galicia’s residence was criminal activity,
even if it was not the primary purpose. Accordingly, the district court applied
the sentencing enhancement and sentenced Galicia to imprisonment for
forty-six months. Galicia timely appealed.
II. Standard of Review
“A district court’s application of § 2D1.1(b)(12) is a factual finding
reviewed for clear error.” United States v. Guzman-Reyes, 853 F.3d 260, 263
(5th Cir. 2017) (quotation omitted). Clear error exists “if, on the entire
evidence, we are left with a ‘definite and firm conviction’ that a mistake has
been committed.” United States v. Marquez, 685 F.3d 501, 508 (5th Cir.
2012) (quotation omitted). The burden rests on the government to
demonstrate the facts necessary to support the enhancement by a
preponderance of evidence. United States v. Soza, 874 F.3d 884, 889 (5th
Cir. 2017).
III. Discussion
On appeal, Galicia argues that the district court clearly erred in
applying the § 2D1.1(b)(12) sentencing enhancement, given the infrequency
and brevity of his residence’s use for drug activities. Galicia maintains that
he stored drugs in his garage on only three occasions over a two-and-a-half-
year period, and he specifically highlights the fact that the drugs were only
stored for a “couple of hours” until they were picked up. Consequently,
Galicia concludes that the distribution of drugs was only an incidental or
collateral use of his home, where he has lived for approximately thirty-five
years. In reaching this conclusion, he largely discounts the two scales found
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in his storage sheds, arguing that this evidence was not enough to support a
finding that a primary or principal use of his home was for distributing drugs.
We disagree with Galicia’s analysis.
The issue in this case centers around the degree of “use” necessary
to be considered a “primary” use. As we noted in United States v. Lopez,
“[i]t is clear that there can be more than one primary use of a building for
purposes of evaluating the enhancement.” 750 F. App’x 349, 351 (5th Cir.
2018) (per curiam); see also U.S. Sent’g Guidelines Manual § 2D1.1
cmt. n.17 (U.S. Sent’g Comm’n 2018) (stating that “distributing a
controlled substance need not be the sole purpose for which the premises was
maintained,” just “one of the defendant’s primary or principal uses for the
premises” (emphases added)). In determining what constitutes a primary
use, the commentary to the Sentencing Guidelines directs courts to consider
how frequently the premises was used by the defendant for (1)
“manufacturing or distributing a controlled substance”; and (2) “for lawful
purposes.” U.S. Sent’g Guidelines Manual § 2D1.1 cmt. n.17
(U.S. Sent’g Comm’n 2018). As we have noted in other cases, the
evidentiary bar for establishing a primary use “has not been set high.” United
States v. Fonseca, No. 19-20701, 2020 WL 6479180, at *3 (5th Cir. Nov. 3,
2020) (per curiam) (quotation omitted); United States v. Rodriguez, 707 F.
App’x 224, 227 (5th Cir. 2017).
We conclude that Galicia’s premises had at least two primary uses:
(1) as his residence, and (2) as a storage site for drug distribution. These
primary uses need not be equivalent. Galicia may have lived in the premises
and raised his family there for thirty-five years, but we agree with the district
court that the premises were eventually used on a continuing basis for the
storage and distribution of drugs. Hence, the long-term, residential quality
of the premises cannot shield Galicia from this enhancement—indeed, if that
were the case, a drug dealer could effectively immunize his home, provided
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he lived there long enough. See United States v. Carrillo, 689 F. App’x 334,
335 (5th Cir. 2017) (per curiam) (concluding “a defendant’s additional use
of a premises as a family home is not necessarily fatal to application of
§ 2D1.1(b)(12)”).
We also note that Galicia admitted to storing drugs in his garage on at
least three occasions,
1
not including Jimenez’s aborted attempt to deliver
drugs to Galicia’s residence shortly before his arrest. Further, the discovery
of two scales in Galicia’s storage sheds, along with the positive detection of
narcotics by an odor-sniffing canine, indicates that Galicia may not have
strictly limited his drug storage activities to the garage, leaving open the
possibility that his residence was used to store drugs on other occasions.
Given the low bar for establishing a primary use for a premises, we AFFIRM
the district court’s sentence.

1
Galicia’s account of the drug operation suggests a repeated pattern of illegal drug
storage. He admitted that he had been working with Jimenez to offload drugs and that, over
time, different subjects and vehicles would come by to pick up the loads. This evidence
does not suggest a handful of isolated incidents.
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